Marquette University Law School Faculty Blog

Yesterday, in a long-anticipated move, the Supreme Court finally overturned its 2002 decision in Harris v. United States. The new decision in Alleyne v. United States extended jury-trial rights to mandatory minimum sentences. Justice Breyer’s “flip” from his position in Harris made the difference.

In Apprendi v. New Jersey (2000), the Court held that a defendant has a right to a jury trial regarding the facts that may increase the maximum sentence to which he is exposed. Breyer dissented in Apprendi and has steadfastly maintained ever since that Apprendi was wrongly decided.

Two years later, in Harris, the Court decided not to extend Apprendi to the facts that raise a defendant’s minimum sentence. Breyer was part of the 5-4 majority in Harris, but stated in a concurring opinion that he could see no reason to distinguish increasing the maximum from increasing the minimum. Thus, Breyer’s vote in Harris was simply another vote against Apprendi. This immediately raised the expectation that some day, when Breyer was ready to give up the fight against Apprendi, he would be willing to overturn Harris.

Some day has come.  Read more »

Federal Rule of Criminal Procedure 11 sets forth various requirements and prohibitions relating to guilty pleas, including a ban on judges participating in plea discussions. If there is a violation, Rule 11(h) specifies that a “variance from the requirements of this rule is harmless error if it does not affect substantial rights” — no harm, no foul. However, at least two circuits have adopted a rule of automatic vacatur of the guilty plea if the judge participated in plea discussions. Other circuits, including the Seventh, have applied the general 11(h) harmless error rule in these situations.

Earlier today, in United States v. Davila (No. 12-167), the U.S. Supreme Court unamimously resolved the circuit split in favor of the general harmless error rule. As the Court saw it, the legal question was an easy one: “[N]either Rule 11 itself, not the Advisory Committee’s commentary on the Rule singles out any instructions [in Rule 11] as more basic than others. And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription . . . .”

The Court declined to adopt any bright-line rules regarding the application of the harmless-error rule: “Our essential point is that particular facts and circumstances matter.” Having determined that the lower court should have applied the harmless-error rule, the Court chose to remand for further consideration of the “particular facts and circumstances.” At the same time, the Court did say, “Had Davila’s guilty plea followed soon after the Magistrate Judge told Davila that pleading guilty be the ‘best advice’ a lawyer could give him, this case may not have warranted our attention.” The suggestion seems to be that a guilty plea entered “soon after” the judge recommended such a course of action would pretty clearly not fall into the category of harmless error. What made Davila’s case more difficult was the three-month delay between the Rule 11 violation and the guilty plea.

Cross posted at Life Sentences.

So just how advisory are the “advisory” federal sentencing guidelines? That was the central question in the U.S. Supreme Court’s decision earlier today in Peugh v. United States, which held that guidelines amendments resulting in harsher recommended sentences are limited by the Ex Post Facto Clause of the Constitution.

The Court converted the federal sentencing guidelines from mandatory to advisory in 2005, but left unanswered many important questions about what exactly it means for the guidelines to be “advisory.” Several of these questions were answered in a trilogy of 2007 decisions, which effectively established a new and unique sentencing system for the federal courts. Although sentencing judges are not required to follow the guidelines, the Supreme Court did put a thumb on the scales in favor of guidelines sentences. Dissenting justices objected that this kinda-sorta advisory system violated the Sixth Amendment, but to no avail.

The new system also raised Ex Post Facto Clause issues, which divided the lower courts. Peugh nicely illustrates the problem.  Read more »

The U.S. Supreme Court has issued a flurry of habeas corpus decisions in the past two weeks.  The habeas petitioner won in two of the cases and lost in the third.  There are no blockbusters in the group, but habeas fans may find hope in two of the decisions that long-awaited breakthroughs may be in the works.

One that will be welcomed by habeas fans is McQuiggin v. Perkins (No. 12-126).  Perkins was convicted of murder in state court, with the judgment becoming final in 1997.  More than eleven years later, Perkins filed a federal habeas corpus petition, alleging that he received unreasonably poor representation by his trial counsel.  The petition plainly violated the one-year statute of limitations for habeas petitions, but Perkins sought to get around the statute by presenting evidence that he was actually innocent of the crime of which he was convicted.  The Supreme Court has long recognized that actual innocence is an exception to the procedural default rule, which normally bars federal courts from considering habeas claims that were not timely raised in state court.  Perkins argued that there should also be an actual-innocence exception to the statute of limitations, and the Supreme Court agreed in a 5-4 decision.

Does this new exception threaten to eviscerate the statute of limitations?   Read more »

My new article, “Not Just Kid Stuff? Extending Graham and Miller to Adults,” is now available on SSRN. Here’s the abstract:

In the wake of today’s decision by the U.S. Supreme Court in Missouri v. McNeely, DUI defense attorneys across the land are doing the “happy dance.”  Prosecutors (both state and federal) on the other hand are rending their garments and hair trying to figure out how to deal with the high court’s ruling that forced blood draws in most DUI cases will now require warrants, and the flood of “refusals” sure to follow as the implications of the case filter out to the public.

Wisconsin’s approach, first established in 1993 in State v. Bohling and then reinforced in 2004 in State v. Faust had been to allow warrantless blood draws in drunk driving cases after several criteria were met, including the presence of  probable cause for the officer to believe the driver under investigation had indeed been driving under the influence of alcohol. The key factor that drove the Wisconsin interpretation was the fact that the blood alcohol level of a drunk driving suspect is continually shifting and dissipating from the time the driver is apprehended, and the extra time it takes to procure a warrant incontrovertibly causes BAC evidence to be lost.

Wisconsin’s rationale had recently served as a kind of dividing line in the national debate about warrantless blood draws.  Read more »

For those interested in federal courts or U.S. foreign relations law, the Supreme Court just issued an important decision in Kiobel v. Royal Dutch Petroleum Co. The basic issue concerned the extent to which the Alien Tort Statute (“ATS”) confers jurisdiction upon district courts to recognize a federal cause of action for violations of customary international law. Here’s what happened: Nigerian nationals sued Royal Dutch Petroleum in federal court for aiding and abetting atrocities allegedly committed by the Nigerian military in the early 1990s, when the plaintiffs and many others were protesting the environmental effects of the oil company’s operations in the Niger River Delta. The district court dismissed some of the claims on the ground that the alleged conduct did not violate international law. On appeal, the Second Circuit dismissed the entire complaint on the view that the ATS does not recognize corporate liability. Many thought that the Supreme Court would affirm on similar reasoning, but the Court mostly sidestepped the issue of corporate liability to focus instead on whether the ATS confers jurisdiction over claims alleging violations of international law when the unlawful acts occurred within the territory of a foreign sovereign. Read more »

Back in 2010, I wrote an article (published in January 2011) asking the question of, essentially, what if the states became stuck on the question of whether same-sex couples could get married? What if they divided, half of them banning same-sex marriages as an affront to the dignity of marriage, and half of them insisting upon the right of their citizens to marry someone of the same sex? Would the states be locked into a patchwork quilt of marriage and non-marriage, with married couple’s rights fading in and out of existence as they crossed the country, or was there some way out of the dilemma?

Our system was born federalist in 1789 but has been getting progressively more nationalist ever since. Most issues that divide the country can be resolved in some way at the national level, either by Congress passing a law under its increasingly expansive Commerce or Spending Clause powers, or by the Supreme Court wielding the Bill of Rights and the Due Process or Equal Protection clauses of the Fourteenth Amendment. But that does not cover the universe of potentially divisive issues. Particularly destabilizing are social statuses designated by state law but not one of the “suspect classifications” of the Equal Protection Clause. For example, same-sex marriage.

In my article, I considered a way to resolve the inevitable disputes that would arise if the system became stuck: half the states recognizing same-sex marriage, half not, and the Supreme Court unwilling to extend Equal Protection doctrine to cover sexual orientation. But towards the end, I noted another possible outcome: the dispute over same-sex marriage could follow the path divorce did in the early twentieth century. Read more »

Paul Clement’s arguments did not carry the day when it came to the outcome a year ago of the historic United States Supreme Court decision on the constitutionality of the individual mandate in the federal Affordable Care Act, popularly known as Obamacare. But his arguments were supported by a majority of the justices on important points that will have an impact for years to come in Congress and in the judicial system, Clement said in delivering the Hallows Lecture 2013 in the Appellate Courtroom of Marquette University Law School’s Eckstein Hall this week.

Clement, formerly solicitor general of the United States, has argued 65 cases before the Supreme Court. He was the lead attorney in presenting arguments to the Court on behalf of 26 states that challenged the health care law. The Court heard a remarkable six hours of arguments focused on several major aspects of the challenge.

“The challenge for the challengers was to run the table to the tune of going 15 for 15” on legal points involved in the case, Clement said. “The good news is the challengers went 14 for 15. The bad news, from the perspective of my clients, is that 14 out 15 isn’t good enough. . . . Getting a really satisfying opinion from four justices still counts as a loss.”

The question at the heart of the case was whether there would continue to be a meaningful limit on the power of the federal government to impose laws such as the Affordable Care Act on the states, Clement said. He said, “I do think in some respects, the single most important takeaway from the decision was there were not five votes to say that there really is no meaningful judicial review of federalism constraints on Congress. There are constraints—again, the power is very substantial, very broad in the wake of the New Deal precedents of the Court, but it remains a limited power.” Read more »

The recent suicide of Aaron Swartz has provoked a great deal of public discussion of what many consider to be overreaching by federal prosecutors in his case.  In the view of some critics, Swartz’s theft of academic articles from JSTOR would have been more properly handled as a minor property offense in state court.  Instead, Swartz found himself in federal court facing a possible 35 years in prison and a set of charges invoking a variety of obscure federal criminal statutes.

Whatever the merits of the criticisms, they have served to draw public attention to the extraordinary power exercised by federal prosecutors and the uncertain line between what is most appropriately handled in state court and what is most appropriately handled in federal.

Although the Swartz litigation is now presumably over, another case that has provoked similar charges of prosecutorial overreaching is now on its way to the Supreme Court . . . for a second time.   Read more »

I have some reflections on the great 1996 prisoner litigation reforms in an essay newly uploaded to SSRN.  Here is the abstract:

In 1996, Congress adopted two sweeping statutes that were intended to restrict the ability of prisoners to obtain redress in federal court for violations of their constitutional rights. This essay introduces an issue of the Federal Sentencing Reporter assessing the legacy of these two laws, the Antiterrorism and Effective Death Penalty and Prison Litigation Reform Acts, and considers the extent to which these statutes highlight structural flaws in the way that the political and legal systems engage with prisoner litigation.

The essay, entitled “Not So Sweet: Questions Raised by Sixteen Years of the PLRA and AEDPA,” was published at 24 Fed. Sent. Rep. 223 (2012).

My new article on habeas corpus and the right to effective assistance of counsel is now out: Bypassing Habeas: The Right to Effective Assistance Requires Earlier Supreme Court Intervention in Cases of Attorney Incompetence, 25 Fed. Sent. Rep. 110 (2012).  Here is the abstract:

This article considers the interplay between habeas corpus law and the Sixth Amendment right to effective assistance of counsel. Certain peculiarities of federal habeas have given a schizophrenic character to recent Supreme Court decisions on ineffective assistance. At the same time that the Court has displayed a new willingness to extend Sixth Amendment protections to the plea-bargaining arena, the Court has also evinced a particular hostility to ineffective assistance claims arising in habeas. The present article identifies the roots of this schizophrenia in the Court’s 2000 decision in Williams v. Taylor. The Court’s trajectory from Williams to the present suggests that, absent a significant ideological makeover, the Court is unlikely in habeas cases to bring greater vigor and clarity to the right to effective assistance. The Court and advocates pushing the Court to adopt stronger Sixth Amendment protections should thus focus their efforts on cases emerging directly from state-court systems, rather than on collateral post-conviction challenges in federal court.